Cheyney,e.p. 


Recent  Tendencies 

IM  THE 

Reform  of  Land  Tenure 


HD  1 251 


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PUBLICATIONS  OF 

The  American  Academy  of  Political  and  Social  Science. 

No.  39. 


Recent  Tendencies 

—IN  THE— 

Reform  of  Land  Tenure 


BY 

EDWARD  P.  CHEYNEY, 

ASSISTANT  PROFESSOR  IN  HISTORY,  UNIVERSITY  OF 

PENNSYLVANIA. 


A  PAPER  SUBMITTED  TO  THE 
AMERICAN  ACADEMY  OF  POLITICAL  AND  SOCIAL  SCIENCE. 


PHILADELPHIA : 

AMERICAN  ACADEMY  OF  POLITICAL  AND  SOCIAL  SCIENCE. 

France:  Larose  et  Forcel,  rue  Soufflot^,  Paris.  Germany:  Gustav  Fischer,  Jena. 
Italy  :  Direzione  del  Giornale  degli  Economist!,  Rome,  Via  Ripetta  102.  ", 


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. » 


RECENT  TENDENCIES  IN  THE  REFORM 
OF  LAND  TENURE. 

Frenchmen  are  fond  of  speaking  of  the  great  revolution  of 
a  century  ago  as  if  it  were  the  source  from  which  all  subsequent 
European  reforms  have  sprung.  But  each  country  has  its  own* 
germs  of  development,  and  the  strongest  historical  influences 
have  been  from  within  the  nations,  not  from  without.  Yet  it  is 
true  that  the  French  revolution  was  to  a  most  wonderful  degree 
a  microcosm  of  modern  history.  Scarcely  a  form  of  subsequent- 
political  or  social  experience  in  any  western  country  is  without 
its  type  in  France  in  those  turbulent  years.  An  instance  ofthis 
is  found  in  one  of  the  earliest  movements  of  the  revolution, 
the  series  of  reforms  in  landholding.  This  was  not  only  one 
of  the  first  institutions  of  French  society  to  feel  the  effects  of 
the  revolution,  but  during  that  whole  period  it  was  the  object 
of  much  legislation  and  administrative  attention.  Since  that 
time  it  has  never  been  long  out  of  discussion.  What  began  thus 
early  in  France,  began  at  somewhat  later  dates  in  every  other 
country  of  Europe.  Questions  of  land  tenure  have  been 
among  the  constantly  recurring  problems  of  internal  policy  in 
each  of  those  countries.  In  this  course  of  discussion  and  legis¬ 
lation  it  is  curious  to  note  that  notwithstanding  all  the  differ¬ 
ences  of  national  institutions  and  national  character,  the  ques¬ 
tions  connected  with  landholding  have  taken  much  the  same 
form  in  the  whole  group  of  western  nations,  and  the  solutions 
themselves,  in  as  far  as  they  have  been  reached,  have  a  con¬ 
siderable  degree  of  similarity. 

A  century  ago,  at  the  beginning  of  the  French  revolution, 
landholding  in  every  country  in  Europe  retained  the  stamp 
which  the  middle  ages  had  impressed  upon  it.  Although  the 
feudal  system  as  a  form  of  government  had  long  before  given 

[309] 


22 


Annals  of  the  American  Academy. 


place  to  more  centralized  monarchical  power,  yet  in  many  of 
its  social  and  economic  elements  it  still  remained  dominant  over 
the  life  of  the  people.  This  was  especially  true  of  landholding, 
the  privileges  of  which  had  been  left  to  the  nobility  as  a  partial 
equivalent  for  the  political  power  they  had  lost.  The  system 
of  land  tenure  moreover  had  the  marks  not  only  of  feudalism 
but  also  of  the  earlier  communal  system  on  which  feudalism 
had  been  imposed.  In  France  the  slow,  insensible  effect’of 
economic  growth  had  modified  the  earlier  conditions  more 
than  in  most  countries,  but  even  here  the  apparent  possessors 
of  much  of  the  soil  held  it  in  very  incomplete  ownership,  and 
subject  to  many  feudal  burdens,  Primogeniture  was  the  legal 
rule  of  descent,  mortmain ,  through  the  church,  had  its  clutch 
on  almost  one-third  of  the  soil  of  the  country,  and  another 
third  was  in  the  entire  possession  of  the  seiz?ieurs.  The  com- 
munes  still  held  a  great  deal  of  undivided  land.  This  condi¬ 
tion  of  things  was  attacked  in  the  first  great  series  of  reforms 
of  the  revolution,  the  legislation  initiated  on  the  night  of  August 
4,  1789.  By  these  decrees  the  remains  of  serfdom  in  France 
were  abolished,  all  rights  of  the  lords  over  holders  of  land  in 
their  manors  were  either  abrogated  outright  or  made  redeem¬ 
able,  and  the  exclusive  right  to  all  game  and  fish  on  lands  lying 
within  the  borders  of  their  manors  taken  away.  A  wdiole 
series  of  old  burdens  on  landholding  was  removed  and  the 
actual  occupants  of  the  soil  in  France  were  emancipated  from 
much  of  the  pressure  of  effete  feudalism.  Three  months  after¬ 
ward  the  National  Assembly  declared  the  estates  of  the  church 
national  property,  they  were  sold  and  thus  taken  out  of  the 
trammels  of  viortmain.  In  1793  lands  belonging  to  emigrant 
nobles  and  persons  convicted  of  political  offenses  were  con¬ 
fiscated  and  sold,  thus  lessening  to  a  great  degree  the  applica¬ 
bility  of  primogeniture.  Subsequently  the  communal  lands 
also  wrere  largely  divided  and  sold.  Another  measure  of  re¬ 
form  was  the  breaking  of  entails,  prohibition  of  primogeniture 
and  substitution  therefor  of  equal  division  of  land  as  well  as 
other  property  among  all  the  children.  This  law  of  -bequest 
finally  settled  into  the  condition  perpetuated  by  the  Code  Na- 


Reform  of  Land  Tenure. 


23 


poison,  by  which  all  lands  must  be  divided  either  equally 
among  the  children  or  with  one  extra  portion  disposable  at 
the  wish  of  the  testator.  Although  Napoleon  in  the  exigencies 
of  his  political  system  allowed  a  slight  return  towards  entails 
yet  this  was  infinitesimal  in  its  effect  on  the  land  system  of 
France.  Thus  in  the  twenty-five  years  of  the  revolutionary 
period  the  land  of  France  had  been  freed  from  almost  all  the 
remains  of  feudalism  and  communism,  and  had  been  put  into 
the  complete  ownership  of  its  possessors. 

The  surrounding  nations  were  not  quick  to  borrow  from  the 
French  during  the  revolution,  but  nevertheless  sooner  or 
later  most  of  them  succumbed  to  its  influence  on  their  land 
systems.  The  incorporation  of  the  portions  of  Germany  west  of 
the  Rhine,  and  of  Belgium  into  France,  involved  the  assimila¬ 
tion  of  their  land  systems,  and  this  remained  a  permanent 
change.  In  Holland  and  the  parts  of  Germany  annexed  for 
a  shorter  period,  the  alteration  of  the  land  system  was  only 
temporary,  though  its  influence  was  permanent.  In  the  States 
of  the  Confederation  of  the  Rhine  the  immediate  effect  was 
only  appreciable  in  a  few  States,  such  as  Westphalia  and  the 
Grand  Duchy  of  Berg,  Hesse-Darmstadt,  and  Nassau,  and  only 
in  certain  respects,  such  as  the  abolition  of  serfdom,  and  the 
abrogation  or  redemption  of  some  feudal  dues  and  impositions. 
Prussia  also  was  influenced,  indirectly  perhaps,  by  the  move¬ 
ments  of  the  time,  and  in  the  Stein-Hardenberg  legislation  of 
1807  and  1811  serfdom  was  abolished,  free  purchase  and  sale 
of  land  granted,  permission  to  break  entails  by  a  family  agree¬ 
ment  given,  and  other  reforms  introduced.  In  Germany  the 
communal  elements  of  the  mediaeval  manor  had  remained  in 
much  greater  strength  than  in  the  countries  further  west,  and 
a  dissolution  of  the  double  ownership  between  lord  of  the 
manor  and  tenant  of  the  manor  had  to  be  one  of  the  first  steps 
of  reform.  The  completion  of  the  ownership  of  the  soil  by 
the  peasant,  in  such  cases,  was  provided  for  by  requiring  the 
cession  of  one-half  or  one-third  of  his  holding  as  the  condition 
of  his  becoming  full  owner  of  the  remaining  portion.  Austria 
alone  among  all  the  States  of  Germany  seems  to  have  felt  no 

[3”]  . 


24  Annals  of  the  American  Academy. 

effects  on  its  system  of  land  holding  from  the  French  revolu¬ 
tion.  Joseph  II,  before  this  time,  had  introduced  modifica¬ 
tions  of  the  worst  personal  elements  of  the  feudal  manor,  but 
as  a  land  system  it  had  been  and  long  remained  practically 
untouched.  In  the  Italian  Peninsula  land  tenure  at  the 
beginning  of  the  revolutionary  period  was  of  a  distinctly 
mediaeval  type,  except  indeed,  in  Tuscany,  where  the  “  en¬ 
lightened  despotism”  of  Leopold  I,  as  of  his  brother  Joseph, 
in  Austria,  had  already  introduced  some  modern  reforms.  In 
1774,  for  instance,  in  his  code  of  provincial  regulations,  he 
had  given  peremptory  instructions  to  all  local  bodies  to  alien¬ 
ate  their  communal  lands,  either  by  sale  or  by  the  form  of 
perpetual  lease  known  as  allivelazione .  In  1782  he  modified 
entails  and  primogeniture,  and  in  1789  abolished  them  alto¬ 
gether.  In  some  of  the  other  Italian  States  the  panic  resulting 
from  the  news  of  the  actions  of  the  National  Assembly  in 
France,  led  the  governments  to  introduce  some  reforms, 
among  which  were  modifications  of  primogeniture,  and  of 
some  of  the  other  abuses  of  feudal  landholding.  But  these 
were  of  little  importance  compared  with  the  changes  brought 
about  by  the  results  of  the  French  invasion.  In  the  ephemeral 
lepublics  into  which  Italy  was  then  divided,  and  in  its  some¬ 
what  more  permanent  organization  as  French  departments, 
and  the  Kingdom  of  Italy,  the  French  code  was  introduced  as 
civil  law.  Under  its  provisions,  over  all  northern  Italy,  the 
burdens  of  feudalism  were  removed  from  the  landholders, 
primogeniture  ceased  to  be  the  rule  of  descent,  and  strict  set¬ 
tlement  of  estates  was  abolished.  In  the  kingdom  of  Naples 
the  sovereigns  of  the  house  of  Bonaparte  set  themselves  to  the 
same  work,  which  was  carried  out  between  the  years  1806  and 
1812  by  a  “  feudal  commission.”  A  great  mass  of  the  Italian 
peasantry,  before  this  time  only  occupants  of  the  soil,  now 
became  its  real  possessors. 

In  Spain  the  revolutionary  Cortes  of  18 11  began  the  work 
which  had  been  done  twenty  years  before  in  France.  The 
lords  of  manors  were  deprived  absolutely  of  all  purely  feudal 
control  of  the  land,  and  after  indemnification  were  deprived  of 

[312] 


Reform  of  Land  Tenure. 


25 


all  previously  irredeemable  rights.  In  England  the  economic 
development  of  the  country  had  made  the  purely  feudal  rela¬ 
tion  of  the  land  holders  of  comparatively  little  importance. 
The  original  communism  of  the  manor  as  represented  by  the 
“commons,”  was  also  to  a  great  extent  a  thing  of  the  past. 
The  old  feudal  and  manorial  constitution  still  existed,  but 
attracted  little  attention,  and  during  this  whole  period  received 
no  legislative  modification.  The  land  system  of  England  was 
sufficiently  full  of  abuses,  but  they  were  not  directly  traceable 
to  feudalism  or  the  manorial  system.  The  same  absence  of 
land  legislation  applies  also  to  the  countries  dependent  on 
England.  Thus  during  the  twenty-five  years  between  1789 
and  1814,  the  land  system  of  Europe  as  it  had  existed  before 
the  beginning  of  that  period  had,  with  some  exception,  been 
radically  changed.  Feudalism  as  a  system  of  land  tenure  was 
abolished,  and  the  remains  of  the  old  communal  organization 
were  very  much  lessened.  Private  property  in  land  had 
become  a  familiar  conception  where  before  it  had  hardly 
existed.  Complete  and  individual  ownership,  dissolution  of 
joint  claims,  freedom  of  purchase  and  sale,  bequest  to  all  chil¬ 
dren  instead  of  to  a  single  heir,  were  more  or  less  fully  intro¬ 
duced  into  all  the  States  of  central  Europe. 

But  this'development  of  the  land  system  of  Europe  had  been 
made  in  the  midst  of  a  great  period  of  political  upheaval  and 
reorganization.  That  period  was  now  at  its  close,  and  it  re¬ 
mains  to  be  seen  how  close  was  the  connection  between  the 
political  movement  and  land  tenure.  As  the  course  of  land 
legislation  is  traced  further,  it  becomes  evident  that  just  as  the 
period  succeeding  the  downfall  of  Napoleon  in  1814  was  one 
of  political  reaction,  so  in  the  economic  sphere,  and  especially 
in  landholding,  it  was  a  period  either  of  return  to  old  condi¬ 
tions,  or  at  best  of  cessation  of  reform  and  development. 

In  France,  the  code  and  the  constitution  stood  in  the  way  of  „ 
any  radical  return  to  pre-revolutionary  land  conditions,  but  even 
here  modifications  in  the  way  of  reaction  were  introduced.  In 

1817  the  right  to  make  bequests  of  land  to  the  church  was  restor¬ 
ed,  in  1819  the  right  to  institute  majorats  or  entails,  restored  by 

[313] 


26 


Annals  of  the  American  Academy. 


Napoleon  for  the  sake  of  his  new  nobility,  was  extended  to  all 
the  constitutional  peerage  of  the  restoration,  and  in  1826  the 
right  to  make  strict  settlement  to  one  generation  allowed  by 
article  1048  of  the  code  was  extended  to  two  generations.  This 
policy  culminated  in  the  attempt  of  the  government  of  Charles 
X  to  carry  a  law  making  the  extra  disposable  portion  allowed 
by  the  French  legislation  in  bequests  of  land  go  always  in 
cases  of  intestacy  to  the  oldest  son,  instead  of  an  equal  divi¬ 
sion  taking  place.  This  being  clearly  a  departure  from  the 
spirit  of  the  land  laws,  and  an  attempt  to  reintroduce  rights  of 
primogeniture,  was  so  strongly  opposed  by  all  the  liberal  ele¬ 
ments  in  France  that  the  attempt  was  given  up.  In  Prussia  a 
law  of  1815  restricted  the  operation  of  the  Plardenberg  legis¬ 
lation  to  large  farms,  and  in  1821  the  calculation  of  indemnity 
to  be  paid  by  peasants  to  lords  of  manors  in  order  to  become 
full  owners  was  again  made  on  the  basis  of  the  whole  group 
of  old  feudal  dues,  instead  of  the  normal  one-half  or  one- 
third.  In  the  other  German  States  the  process  of  land  en¬ 
franchisement  that  had  been  going  on  so  rapidly  during  the 
last  period  came  to  a  sudden  stop.  In  the  States  of  the  Italian 
Peninsula  the  same  reaction  took  place.  In  Piedmont  the  old 
regime  was  introduced  as  completely  as  possible.  In  Lomba.rdo- 
Venetian  provinces  the  Austrian  code,  one  of  the  most  back¬ 
ward  in  Europe  in  its  land  legislation,  was  enforced  by  the 
courts  ;  in  Modena  absolutely  all  of  the  old  feudal  parapher¬ 
nalia  were  brought  back.  In  Tuscany  and  Parma  alone  was 
there  an  enlightened  land  system.  In  Spain  Ferdinand  VII, 
along  with  his  abrogation  of  the  constitution,  repealed  the 
law  of  1 81 1  and  re-established,  in  1814,  all  of  the  old  feudal 
rights  over  the  soil. 

As  this  period  of  retrogression  in  land  tenure  reform  was  an 
accompaniment  of  political  reaction,  so  the  European  revolu¬ 
tions,  which  instituted  political  advance,  led  to  renewed  pro¬ 
gress  in  land  legislation.  In  1820,  1830,  and  1848  the  peoples 
of  the  continent  made  successive  efforts  to  gain  liberty,  and  a 
resumption  of  the  work  of  enfranchising  the  soil  from  mediae¬ 
val  conditions  followed  in  the  wake  of  each  of  these  movements. 

[314] 


Reform  of  Land  Tenure. 


27 


The  earliest  instance  of  this  close  connection  between  political 
and  economic  reform  was  when  the  Spanish  revolutionary- 
government  in  1820  confiscated  the  mortmain  lands  of  the 
church,  limited  entails,  and  re-established  the  old  law  of  1811.. 
But  the  most  striking  instances  are  in  some  of  the  Italian  States. 
The  Sardinian  government,  for  instance,  as  a  result  of  the 
risings  of  1820  and  1821,  turned  its  attention  to  reforms, 
though  the  only  actual  result  was  a  law  for  the  public  registry 
of  mortgages.  After  the  revolution  of  1830  a  new  code  was 
formulated  in  which  the  division  of  intestate  lands  left  forever 
the  old  basis  of  primogeniture,  and  settlements  and  entails  were, 
very  much  limited.  In  1832,  an  edict  gave  to  communes  per¬ 
mission  to  alienate  their  joint  possessions,  and  at  the  same 
time  feudal  rights  and  communal  holdings  were  abolished  in 
the  Island  of  Sardinia.  In  a  third  step,  immediately  after  the 
revolution  of  1848,  entails  and  all  other  rights  of  primogeniture 
were  abolished,  and  in  1851  the  work  for  that  kingdom  was 
practically  completed.  Similarly  in  France,  the  law  of  1835. 
forbade  future  creations  o i  majorats  or  entails,  and  that  of  1849 
provided  for  the  speedy  extinction  even  of  those  already  exis¬ 
ting.  This  law  abolished  the  right  of  making  substitutions  or 
strict  settlements  altogether.  In  Germany  the  more  backward 
States  which  had  withstood  the  earliest  movements,  all  suc¬ 
cumbed  as  a  result  either  of  1830  or  of  1848,  and  followed  the 
main  lines  of  early  land  tenure  reform,  abolition  of  serfdom 
and  feudal  dues,  modification  or  abolition  of  primogeniture  in 
its  various  forms,  division  of  communal  rights,  introduction  of 
allodial  and  individual  holdings  in  place  of  joint  holdings  on  a 
feudal  basis.  For  instance,  in  Hesse- Darmstadt  and  Wiirtem- 
berg  the  long,  dragging  discussion  of  feudal  burdens  remain¬ 
ing  from  the  Napoleonic  period,  was  roused  into  life  by  the 
events  of  1830,  and  in  the  year  1836  radical  laws  cleared  them 
away  altogether.  Still  more  promptly  after  the  revolution  of 
1848,  we  find  liberal  land  laws  in  Bavaria,  Baden,  Hesse  Cassel 
and  Prussia,  before  that  year  was  finished.  In  Austria  and 
Hungary  since  the  attempted  reforms  of  Joseph  II,  as  has  been 
already  noted,  land  legislation  had  lagged  behind  almost  all 

[315J  • 


28 


Annals  of  the  American  Academy. 


the  rest  of  Europe,  and  this  notwithstanding  general  recogni¬ 
tion  of  the  character  of  the  land  system  as  an  anachronism. 
In  1835,  proposals  for  change  had  been  made  by  the  land- 
holding  nobles  themselves,  but  the  government  with  its  well- 
known  reluctance  to  enter  upon  innovation  shrunk  from  the 
task.  In  1846,  however,  a  peasant  rising  in  Galicia  directed 
the  eyes  of  all  Europe  upon  the  land  system  of  the  Austrian 
States,  and  the  Imperial  government  at  last  issued  a  series  of 
decrees  facilitating  voluntary  arrangements  between  the  peasants 
and  the  lords.  Here,  however,  it  stopped  and  no  effective 
changes  had  been  made  when  the  storm  of  revolution  in  1848 
swept  down  upon  the  country.  A  month  after  the  March 
risings  in  Vienna,  the  emperor  promulgated  a  constitution 
for  the  empire  which  would  have  necessitated  the  ultimate 
enfranchisement  of  the  soil,  but  soon  the  new  assembly  took 
the  matter  out  of  the  hands  of  the  sovereign,  and  on  the  4th 
of  September,  1848,  decreed  the  immediate  and  entire  abolition 
of  the  whole  feudal  regime  including  the  burdens  and  restric¬ 
tions  on  land. 

After  the  reactions  of  1849,  it  might  have  been  expected 
that  the  recent  reforms  in  land  tenure  would  be  reversed,  as  in 
1814.  But  the  century  was  too  far  advanced;  the  risings 
of  1848  had  been  almost  as  much  economic  as  they  had  been 
political,  and  an  element  had  entered  into  them  which  had 
little  place  in  the  revolutions  of  1820  and  1830.  This  new  ele¬ 
ment  was  a  demand  not  for  more  political  rights  only,  but  for 
greater  material  prosperity  and  economic  opportunity  for  the 
mass  of  the  people.  Therefore,  although  the  political  reforms 
failed,  at  least  temporarily,  yet  the  accompanying  reforms  in 
landholding  were  permanent. 

In  England  the  land  system  had  gone  through  a  unique 
development,  and  had  long  resisted  any  influences  from  the  out¬ 
side.  But  even  here  the  spirit  of  the  age  was  at  last  felt,  and 
the  old  citadel  of  English  conservatism,  the  land  system,  was 
attacked.  But  this  work  scarcely  began  before  the  middle  of 
the  century.  Up  to  that  time  the  communal  holdings  in  the 
.form  of  manorial  commons  and  intermixed  fields  had  been 

[316] 


Reform  of  Land  Tenure. 


29 


gradually  decaying,  it  is  true,  partly  under  the  influence  of 
economic  forces,  partly  as  the  result  of  direct  legislation .  The 
private  acts  for  the  enclosure  of  commons  had  been  super¬ 
seded  in  1801  by  a  general  enclosure  act,  and  this  had  been 
extended  and  developed  in  1845.  The  feudal  burdens  had  be¬ 
come  shadowy,  and,  with  the  exception  of  the  few  “  copyhold  ” 
tenures,  almost  obsolete.  Nevertheless,  the  advantage  of  these 
changes  had  not  gone  to  the  peasantry,  nor  to  small  farmers 
of  any  kind,  but  to  a  class  of  landholding  families  owning  the 
land  in  large  tracts,  and  having  a  grip  on  it  stronger  than  any 
other  class  in  Europe.  Legislation  and  the  theories  of  the 
common  law  had  all  been  developed  to  perfect  the  control  of 
this  class  over  the  land,  and  to  keep  it  within  their  possession. 
Entails  still  existed,  the  custom  ofstrict  settlements  made  prac¬ 
tical  entails  over  a  large  part  of  the  country,  in  intestate  divis¬ 
ion  primogeniture  was  recognized;  there  was  no  public  land  reg¬ 
istry,  the  formulas  of  wills  and  ofdeeds  had  become  long,  com¬ 
plex  and  doubtful  in  meaning,  all  legal  actions  relating  to 
landholding  were  slow,  cumbrous  and  dangerous.  The  land 
therefore  remained  for  the  most  part  in  the  hands  of  its  few 
owners,  and  sales  were  difficult  and  unusual  occurrences.  The 
peasantry  had  been  reduced  to  a  hopeless  and  helpless  class  of 
day  laborers,  and  the  intervening  class,  the  tenant  farmers, 
paid  a  competitive  rent  to  the  land  owners.  The  first  propo¬ 
sition  for  changes  in  the  English  land  system  were  made  after 
an  investigation  by  a  board  of  real  property  commis¬ 
sioners  about  1830.  Little  by  little  after  that  time  minute  re¬ 
forms  were  carried  out.  These  were  principally  in  the  direction 
of  simplification  of  the  processes  of  purchase,  sale,  mortgage, 
and  bequest  of  land,  and  of  its  assimilation  to  other  forms  of 
property.  In  1838  a  means  was  suggested  by  which  copy- 
hold  estates  could  be  transformed  into  actual  property.  In  1841 
a  large  step  towards  this  was  taken  and  in  successive  laws,  es¬ 
pecially  those  of  1852  and  1858,  the  change  was  practically 
completed.  The  net  result  of  all  the  land  legislation  of  Eng¬ 
land  to  this  time  was  absurdly  small,  yet  its  general  direction 
was  unquestionably  the  same  as  that  of  the  contemporaneous 


3° 


Annals  of  the  American  Academy. 


legislation  in  the  continental  countries.  The  Irish  land  ques¬ 
tion  was  brought  into  recognition  by  the  report  of  the  Devon 
commission  in  1845,  and  was  elevated  into  the  prominence 
it  has  never  since  lost  by  the  famine  immediately  following 
that  year.  But  the  measures  for  reform  introduced  into 
parliament  representing  the  views  of  Irishmen  were  all  re¬ 
jected  and  the  only  resulting  legislation  was  the  creation  of  the 
Encumbered  Estates  Court,  in  1849.  This  court  had  large 
powers  for  the  selling  of  estates,  even  when  settled  by  be¬ 
quests,  if  they  were  heavily  encumbered,  on  the  appeal  either 
of  the  holder  or  of  the  creditors. 

During  the  whole  revolutionary  period  and  the  early  part  of 
this  century,  the  principal  incentive  to  reform  of  land  tenure 
was  the  feeling  that  the  feudal  system  and  communal  holdings 
were  unjust,  a  tyrannical  abuse,  a  privilege  of  the  few  at  the 
expense  of  the  many.  In  abolishing  this  system  the  liberal 
governments  simply  felt  that  they  were  attacking  an  old  in¬ 
justice.  Subsequently,  however,  the  movement  toward  the 
enfranchisement  of  land  was  reinforced  by  a  second  influence, 
that  is,  by  the  strong  bent  of  the  economic  thought  of  the  time 
toward  individualism,  freedom  of  contract,  and  absolute  owner¬ 
ship.  The  political  economists  had  no  mercy  on  entails, 
primogeniture,  communistic  holdings,  government  interference 
or  any  other  limitation  to  freedom  of  sale  and  bequest,  or 
the  readiness  of  disposition  and  use  of  land  according  to  the 
supposed  laws  of  demand  and  supply.  The  group  of  views 
held  and  taught  by  the  most  influential  political  economists  of 
the  first  half  of  this  century  therefore  worked  in  the  same  di¬ 
rection  and  gave  added  force  to  the  movement  of  land  reform 
already  long  in  progress.  This  influence  as  it  affected  the 
land  question  may  be  considered  to  have  reached  its  height  in 
the  decade  after  1850. 

During  that  period,  in  nearly  every  country  in  Europe,  laws 
were  passed  requiring  the  registry  of  mortgages  and  other 
land  operations,  facilitating  the  purchase  of  encumbered  lands 
by  the  peasantry,  and  simplifying  judicial  procedure  in  fore- 
closure  and  ejectments.  Such  laws  presupposed  the  abolition 


Reform  of  Land  Tenure. 


3i 


of  the  feudal  system,  and  were  simply  improvements  in  the 
new  order  of  landholding.  Instances  of  the  first  of  these 
classes  of  laws  are  found  in  the  Belgian  law  of  1852  and  the 
French  law  of  1855,  and  of  the  second  class  in  the  legislation 
of  Saxony,  Prussia,  Baden  and  Hesse,  to  help  the  peasants  to 
pay  the  necessary  indemnity  for  their  farms,  in  1850  and  1851. 
The  Irish  acts  of  1854  and  1858  are  instances  of  the  third  class 
of  reforms.  Probably  it  is  a  mere  chance  co-incidence  that  in 
America,  in  the  State  cf  New  York,  in  the  same  period,  the 
combined  action  of  the  legislature  and  the  courts  dissolved  the 
double  ownership  of  the  landlord  and  the  tenant  in  the  so- 
called  leasehold  districts.  But  the  clearest  instance  of  the 
influence  of  economic  theory  on  land  legislation  was  in  the 
Iribh  land  law  of  i860.  This  act  introduced  the  simple  principle 
of  absolute  free  contract  into  the  complexity  of  Irish  land  con¬ 
ditions.  At  one  stroke  it  changed  the  whole  relation  of  land¬ 
lord  and  tenant  from  one  of  statics  to  one  of  contract.  With 
studied  care  it  disregarded  entirely  that  “tenant-right”  which 
was  claimed  and  believed  in  by  the  great  mass  of  Irishmen  as 
the  foundation  of  their  tenancy,  and  which  was  half  acknowl¬ 
edged  by  earlier,  and  entirely  recognized  by  later  legisla¬ 
tion.  Before  this  time  the  Irish  courts  had  been  looked  upon 
as  performing  the  function  of  determining  the  relative  rights 
of  landlord  and  tenant;  by  this  law  they  were  restricted  to  the 
sole  duty  of  enforcing  contracts  entered  into  between  landlord 
and  tenant.  Thus  an  attempt  was  made  to  put  land  owning 
and  land  renting  in  Ireland  on  the  same  footing  as  any  mercan¬ 
tile  operations.  The  influence  of  economic  teaching  on  the 
minds  of  the  English  legislators  of  that  time  could  hardly  be 
shown  in  a  more  striking  manner  than  by  the  passage  of  such 
a  revolutionary  law,  reversing  the  whole  development  of  Irish 
land  history  up  to  that  time,  and  trying  to  make  its  system 
conform  immediately  to  a  preconceived  theoretic  model.  A 
few  years  later,  another  example  of  such  influence  was  found 
in  the  new  Portuguese  code  of  1867,  and  its  effect  in  destroy¬ 
ing  the  old  system  of  land  tenure  known  as  aforamento.  This 
was  a  kind  of  perpetual  lease,  introduced  by  the  Benedictine 

[319]  . 


32  Annals  of  the  American  Academy. 

monks  in  early  centuries  on  their  domains,  and  gradually  be¬ 
came  the  prevailing  form  of  landholding  in  southern  Portu¬ 
gal.  A  farm  held  on  these  conditions  could  not  be  divided, 
and  the  tenure  provided  for  the  payment  of  a  fine  on  every 
alienation,  either  by  sale  or  by  bequest.  The  code  of  1867 
was  professedly  based  on  that  of  France,  and  intended  to 
liberate  the  soil  and  reconstitute  absolute  property  in  land.  It 
prohibited,  therefore,  payments  on  occasions  of  an  alienation,  as 
being  a  feudal  recognition,  and  forbade  bequest  of  all  the  land 
of  a  father  to  any  one  child.  These  two  provisions  struck  at 
the  primary  characteristics  of  the  tenure  mentioned  above,  and 
under  their  action  aforamento  has  since  been  rapidly  passing 
away.  The  same  influences  in  Spain  have  led  to  the  division 
and  sale  of  much  of  the  property  of  the  communes. 

Down  to  as  late  a  period  as  i860,  at  least,  the  tendency 
of  land  legislation  was  all  in  one  direction.  This  was  toward 
making  land  an  object  of  individual  and  uncontrolled  owner¬ 
ship,  of  free  contract  and  free  disposal  ;  toward  making  it  the 
object  of  possession,  use,  and  exchange  in  just  the  same  way 
as  a  piece  of  furniture,  a  horse,  money,  or  any  other  article  of 
personal  possession  is  at  the  disposal  of  its  owner.  Within  a 
period  of  three  quarters  of  a  century  the  mediaeval  bases  of 
landholding  had  been  destroyed  and  an  individualistic  form  of 
tenure  substituted.  Private  property  in  land  had  been  created ; 
land  had  been  brought  into  the  category  of  objects  of  personal 
ownership.  The  laws  of  the  middle  of  the  century,  moreover, 
over  all  central  Europe,  seemed  to  tend  toward  a  further 
development  of  the  characteristics  of  the  new  system. 

If,  however,  we  abandon  the  method  of  tracing  the  course 
of  land  legislation  from  the  French  revolution  downward,  and 
beginning  with  the  most  recent  laws  and  proposals  for  laws, 
trace  legislation  upward  through  the  last  decade  or  two,  we 
will  find  ourselves  in  the  midst  of  a  strikingly  different  tendency. 
For  instance,  in  last  winter’s  session  of  the  French  chambers 
of  deputies,  three  distinct  laws  were  introduced  providing 
for  the  compulsory  payment  by  the  landowners  to  an  outgoing 
tenant  of  the  amount  by  which  he  has  made  the  farm  more 

[320] 


Reform  of  Land  Tenure. 


33 


valuable.  A  law  of  the  same  effect  was  passed  in  England  in 
1883,  and  one  of  much  the  same  import  as  early  as  1875.  The 
principle  was  introduced  in  Scotland  in  1885,  in  the  crofters  acts, 
and  in  Ireland  in  the  land  acts  of  1870  and  1881.  An  act  for 
the  same  purpose  was  debated  in  the  Belgian  parliament  in 
1888,  and  although  it  failed  to  pass,  was  only  defeated  on  an 
unessential  argument.  In  all  of  these  laws  and  projects  of 
laws  the  landlord  and  tenant  are  forbidden  to  contract  them¬ 
selves  out  of  their  provisions.  The  normal  case  therefore 
would  be  one  where  the  tenant  independently  of  the  landlord, 
without  his  participation  and  even  possibly  without  his  consent 
would  put  any  such  expense  upon  the  land  as  he  could  make 
appreciable  and  then  at  the  expiration  of  his  tenancy  collect 
the  proper  indemnity  from  the  landowner.  There  is  in  this 
case  a  considerable  deduction  from  the  landowner’s  complete 
control  of  his  land.  Indeed  such  a  principle  when  admitted 
exactly  reverses  the  former  policy  of  assimilating  land  to  other 
forms  of  property,  and  introduces  an  element  of  joint  double 
ownership,  instead  of  absolute  single  possession.  Coming 
from  an  entirely  different  origin,  it  brings  in  practically  the 
same  combined  rights  to  property  in  the  soil  as  those  which 
existed  in  the  feudal  manor. 

Again,  t{ie  Prussian  lower  house,  in  September,  1890, 
passed  a  law  allowing  the  formation  of  Rentenguter .  That  is, 
it  permitted  the  establishment  of  what  are  practically  perpetual 
tenancies,  on  aground-rent  irredeemable  except  by  consent  of 
both  parties.  This  legislation,  if  completed,  would  be  a  return 
toward  such  tenures  as  the  Portuguese  aforamento ,  Italian 
allivelazione ,  American  lease-holds  and  ground-rents,  and 
others,  which  were  the  especial  objects  of  destructive  effort  in 
the  legislation  of  the  first  half  of  the  century.  The  idea  that 
land  should  be  tied  up  in  a  form  difficult  of  alienation,  and  in¬ 
capable  either  of  being  resumed  by  its  original  grantor  or  freed 
from  incumbrance  by  its  holder,  is  one  utterly  repellent  to  the 
spirit  of  the  legislation  already  discussed,  and  yet  it  is  the  de¬ 
liberate  object  of  more  than  one  recent  proposal. 

Still  a  third  instance  of  reversal  of  policy  is  in  the  matter  of 

[321]  . 


34 


Annals  of  the  American  Academy. 


communal  lands.  In  England  there  were  few  of  these  left,  but 
their  preservation,  instead  of  enclosure  and  division,  has  been 
the  object  of  successive  acts  reversing  the  previous  policy, 
beginning  with  the  “metropolitan  commons  act”  in  1866. 
The  English  allotments  act  of  1886  enabled  local  authorities 
to  acquire  land  by  compulsory  purchase  for  the  purpose, 
among  others,  of  forming  common  pastures.  On  the  continent 
the  same  feeling  has  shown  itself  in  an  appreciable  diminution 
in  the  process  of  selling  communal  holdings,  and  a  study  of 
the  possibilities  of  utilizing  such  as  remain  in  a  more  profitable 
way.  Such  a  movement  is,  of  course,  quite  contrary  to  the 
old  effort  to  make  land  an  object  of  ready  division  and  sale.  It 
seems  to  acknowledge  that  there  are  some  uses  of  land  which 
are  better  served  by  keeping  it  in  the  hands  of  the  community 
than  by  distributing  it  to  individuals. 

Interferences  between  landlord  and  tenant  by  which  the 
community,  as  a  whole,  sees  to  it  that  the  tenant  secures  better 
terms  than  mere  competition  has  been  found  to  give  him,  are 
numerous  in  recent  legislation.  The  Irish  land  act  of  1870 
gave  compensation  to  the  tenant  for  disturbance  as  well  as  the 
compensation  for  unexhausted  improvements  already  men¬ 
tioned.  The  law  of  1881,  in  addition,  provided  for  a  govern¬ 
ment  estimate  of  what  was  a  fair  rent,  and  this  the  landlord 
was  bound  to  accept.  The  same  provisions  were  incorporated 
in  the  Scotch  crofters  acts  of  1885  and  1886.  The  latter  also 
gave  the  authorities  power  to  take  land  from  the  landlords  and 
add  it  to  the  crofts  of  the  peasants  at  an  official,  not  a  competi¬ 
tive,  rent.  Similarly,  the  allotments  act  of  1886  gave  power  to 
acquire  land  by  compulsory  purchase  in  order  to  let  it  to  small 
cultivators.  Still  more  radical  propositions  have  been  made 
by  a  commission  of  parliament  recently  appointed  to  investi¬ 
gate  the  question  of  the  distribution  of  land.  These  measures 
certainly  represent  a  very  different  principle  from  that  typified 
by  the  Irish  land  act  of  i860,  very  different  from  a  r6gime  of 
pure  contractual  relation  between  landlord  and  tenant. 

Thus  in  at  least  four  different  aspects  of  landholding,  recent 
laws  have  shown  themselves  to  be  of  a  directly  opposite  ten- 


Reform  of  Land  Tenure. 


35 


dency  to  that  of  the  first  half  of  the  century.  If  these  measures 
of  reform  of  land  tenure  are  followed  up  they  will  prove  to  have 
this  new  tendency  since  about  the  year  1870.  This  then  was 
the  turning  of  the  tide.  Consciously  or  unconsciously,  at  one 
time  in  one  aspect  of  landholding,  at  another  time  in  another, 
agitation,  interest,  legislation  have  departed  from  their  old 
ideas  and  turned  toward  new.  We  have  apparently  ceased  to 
try  to  treat  land  exactly  as  other  forms  of  property.  Recog¬ 
nizing  its  intrinsic  peculiarities,  society  is  struggling  with  the 
problems  involved  in  its  more  just  and  at  the  same  time  equally 
productive  distribution  and  use.  And  this,  like  the  earlier 
movements,  is  practically  contemporaneous  in  all  the  countries 
of  Europe.  Just  as  the  process  of  early  enfranchisement 
followed  the  same  general  fortunes  in  each  of  the  countries  dur¬ 
ing  one  period  of  modern  European  history  :  just  as  land 
tenure  in  the  several  countries  was  affected  nearly  alike  by  the 
political  currents  and  countercurrents  of  the  time  :  just  as  the 
influence  of  political  economy  came  to  reinforce  the  movement 
in  all  the  countries — so  the  cessation  of  the  older  course  of 
laws  came  at  nearly  the  same  time,  and  the  tendency  of  recent 
legislation  has  been  strikingly  alike  in  all  Europe. 

The  movement  away  from  individualism  in  land  owning 
must  therefore  be  considered  as  a  general  one,  not  confined  to 
any  particular  country.  It  is  part  of  the  great  social  move¬ 
ment  of  our  time,  turning  away  from  mere  freedom  of  the 
individual  and  seeking  for  a  reorganization  of  the  community, 
disavowing  the  rule  of  selfishness  however  “enlightened,’ ’  and 
insisting  on  some  degree  of  associative  action,  control  and 
enjoyment. 

E.  P.  Cheyney. 

University  of  Pennsylvania. 


[323] 


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Publications  of  the  Academy. 


1890—91. 

I.  ANNALS  OF  THE  ACADEMY.  Vol.  I.  Four  Numbers.  Fp.  754,  with  Supple¬ 
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lowing  Contributors : 


Prof.  Charles  M.  Andrews, 
Prof.  W.  J.  Ashley, 

E.  v,  Boehm -Bawerk, 

Hon.  J.  G.  Bourinot,  C.  M.  G.j 
Prof.  J.  B.  Clark, 

Dr.  Roland  P,  Falkner, 

Prof.  F.  H.  Giddings, 

F.  H.  Holls,  Esq., 

Prof.  William  C.  Morey, 

Prof.  Simon  N.  Patten, 

Prof.  C.  Stuart  Patterson, 

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J.  G.  Rosengarten,  Esq., 

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Leo  H.  Rowe, 

Prof.  Fred  M.  Taylor, 

Prof.  C.  A.  Tuttle, 

Stuart  Wood,  Esq., 


Bryn  Mawr  College. 

University  of  Toronto. 

Ministry  of  Finance,  Vienna,  Austria. 

Ottawa,  Canada. 

Smith  College. 

University  of  Pennsylvania. 

Bryn  Mawr  College. 

New  York  City. 

Rochester  University. 

University  of  Pennsylvania, 

Law  School  of  the  University  of  Pennsylvania. 
Oxford  University  (England). 

Philadelphia. 

University  of  Pennsylvania. 

Fellow  Wharton  School  of  Finance  and  Economy. 
University  of  Michigan. 

Amherst  College. 

Philadelphia.  . 


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Billings.  Supplement  to  Annals,  1891.  Pp.  23.  50  cents. 

3  .  HISTORY  OF  STATISTICS.  By  Prof.  August  Meitzen,  Translated  from  the 
German,  by  Dr.  Roland  P.  Falkner.  Supplement  to  Annals,  1891.  Pp.  100.  $1.25. 

4.  HANDBOOK  OF  THE  ACADEMY.  Supplement  to  Annals,  1891.  Pp.  97.  $2.00 

5.  THEORY  AND  TECHNIQUE  OF  STATISTICS.  By  Prof.  August  Meitzen 

Translated  from  the  German,  by  Dr.  Roland  P.  Falkner.  Supplement  to 
Annals,  1891.  Pp.  143.  $1.50. 


1891—92. 

6.  ANNALS  OF  THE  ACADEMY.  Vol.  II.,  No.  1.,  July,  1891.  Pp.  144.  81.25. 

7.  ANNALS  OF  THE  ACADEMY.  Vol.  II.,  No.  2.  September,  1891.  Pp.  144 

and  21.  Price  $1.25.  Contained: 

Recent  Constitution-Making  in  the  United  States.  Francis  Newton  Thorpe 
Economics  in  Italy.  A.  Loria. 

Present  Condition  of  the  Peasants  in  the  Russian  Empire.  Vicomte  Combes 
de  Lestrade. 

Statistical  Publications  of  the  United  States  Government.  Wm,  F.  Wil¬ 
loughby. 

Personal  Notes  ;  Book  Reviews  ;  Miscellany:  The  Congress  of  the  Learned 
Societies  of  Paris.  Leo  H.  Rowe. 

List  of  Accessions  to  Membership  in  the  Academy. 

8.  ANNALS  OF  THE  ACADEMY.  Vol.  II.-,  No.  3,  November,  1891.  Current 

Number. 


AMERICAN  ACADEMY 


OF 


Political  and  Social  Science. 


PHILADELPHIA. 


President , 

EDMUND  J.  JAMES,  Ph.D.,  University  of  Pennsylvania. 


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J.  G.  BOURINOT,  C.M.G.,  LL.D.,  D.C.L., 
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Prof.  J.  K.  INGRAM, 

Dublin  University. 
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